United States v. Cook, John A.

In the
United States Court of Appeals
For the Seventh Circuit
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No. 04-1923
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN A. COOK,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01 CR 144—William C. Griesbach, Judge.
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ARGUED MARCH 31, 2005—DECIDED APRIL 29, 2005
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Before FLAUM, Chief Judge, and POSNER and EVANS, Circuit
Judges.
POSNER, Circuit Judge. The defendant pleaded guilty to
conspiracy to distribute the illegal drug “ecstasy” and was
sentenced to serve 188 months in prison and to pay the
government $4,725 in restitution. He challenges his sentence
on several grounds, including the ubiquitous Booker ground;
and the government concedes that he is entitled to the
limited remand authorized by our decision in United States
v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005); see also
United States v. Spano, 401 F.3d 837, 842 (7th Cir. 2005);
2 No. 04-1923
United States v. Askew, 2005 WL 757381, at *11-12 (7th Cir.
Apr. 5, 2005); United States v. Coles, 2005 WL 783069, at *5-7
(D.C. Cir. Apr. 8, 2005) (per curiam). The question is
whether he is entitled to more.
The plea agreement provides in language that could not
be clearer that “the government agrees to recommend to the
sentencing court that the defendant receive a two-level
decrease for acceptance of responsibility under Sentencing
Guidelines Manual §3E1.1(a).” In compliance with the
agreement, the government so recommended, and at the
sentencing hearing the defendant’s own lawyer said that his
client was seeking a two-level decrease, and that is what the
judge gave him. The defendant now claims that he’s entitled
to a three-level decrease. And it is true that the guidelines at
the time he was sentenced would have entitled him to a
three-level decrease had he asked for it. U.S.S.G. § 3E1.1(b)
(2002); United States v. Garrett, 90 F.3d 210, 213-14 (7th Cir.
1996); United States v. Townsend, 73 F.3d 747, 755-56 (7th Cir.
1996); United States v. Blanco-Gallegos, 188 F.3d 1072, 1076-77
(9th Cir. 1999); United States v. McPhee, 108 F.3d 287 (11th
Cir. 1997). But the government contends that by asking for
the two-level decrease the defendant’s lawyer waived any
claim to the third level. The defendant denies there was a
waiver but acknowledges that by failing to ask for the third
level he forfeited the point and can be relieved from the
forfeiture only if the denial of the third level was a plain
error.
A forfeiture is basically an oversight; a waiver is a delib-
erate decision not to present a ground for relief that might
be available in the law. United States v. Olano, 507 U.S. 725,
732-34 (1993); United States v. Redditt, 381 F.3d 597, 602 (7th
Cir. 2004); United States v. Williams, 258 F.3d 669, 672 (7th
Cir. 2001); United States v. Rodriguez, 311 F.3d 435, 437 (1st
Cir. 2002). If the plea agreement had made no reference to
No. 04-1923 3
acceptance of responsibility and the defendant’s lawyer had
not asked for an acceptance-of-responsibility sentencing
discount, that would be forfeiture. And likewise if he had
asked, but had not indicated how many levels he wanted.
But the plea agreement showed he’d negotiated for a gov-
ernment recommendation of two levels, and at the sentenc-
ing hearing he asked for two levels. To ask for two levels is
deliberately not to ask for three. Any doubt on this score is
dispelled by the provision of the plea agreement that “both
parties reserve the right to make any recommendation
regarding any other matters not specifically addressed by
this agreement.” The number of levels for acceptance of
responsibility was specifically addressed, so the defendant
had no right to make a variant recommendation; and he
didn’t.
Of course it may have been a mistake to ask for two rather
than three levels. But a waiver can rest on a mistake.
Suppose you ordered a hamburger, and it was served to
you, and it was smaller than you expected and you decided
you’d made a mistake ordering only one. You couldn’t
argue with a straight face that you hadn’t intended to order
only one hamburger, that it was an oversight on your part.
The plea agreement in this case states among other things
that the defendant is waiving his right to trial by jury. Sup-
pose he waived it because his lawyer told him that in the
Northern District of Illinois, owing to a shortage of jurors,
baboons from Brookfield Zoo are regularly empanelled to
fill out criminal juries. The waiver would be based on a
profoundly mistaken premise, and the defendant would be
entitled to relief, but it would not be because he hadn’t
waived his right to trial by jury; it would be because the
conviction based on the plea agreement was invalidated by
the ineffective assistance rendered him by his lawyer, United
States v. Bownes, No. 03-3016, slip op. at 5 (7th Cir. Apr. 26,
4 No. 04-1923
2005), and cases cited there, provided he could show that if
correctly advised he would not have entered the plea. Hill v.
Lockhart, 474 U.S. 52, 58-59 (1985); United States v. Standiford,
148 F.3d 864, 869-70 (7th Cir. 1998). If the defendant’s
lawyer had no tactical reason to give up the third level—if
the government made no reciprocal concession elsewhere in
the agreement—the defendant might be able to demonstrate
ineffective assistance of counsel. But he does not seek relief
on that basis.
There are other grounds for rescinding a plea agreement
besides ineffective assistance of counsel, such as mutual mis-
take. A plea agreement is a contract, and like any contract
can be rescinded on the basis of such a mistake. United States
v. Bradley, 381 F.3d 641, 648 (7th Cir. 2004); United States v.
Williams, 198 F.3d 988, 993-94 (7th Cir. 1999); United States v.
Sandles, 80 F.3d 1145, 1148 (7th Cir. 1996); see also United
States v. Lewis, 138 F.3d 840, 841-43 (10th Cir. 1998). It is not
just a contract; it is also a stage in a criminal proceeding. That
is why, as we noted in our recent decision in Bownes, some
defenses that would not be available in a suit to enforce an
ordinary contract, such as ineffective assistance of counsel,
are available in a contest over the enforceability of a plea
agreement. A defendant who has signed a plea agreement
has all the defenses he would have under contract law, plus
some.
But our defendant isn’t seeking rescission of the plea agree-
ment. For that matter, he has presented no evidence that
there was a mistake about the acceptance-of-responsibility
sentencing discount, mutual or otherwise, rather than a deal
under which he got something in exchange for forgoing the
third level. He wants the benefit of all the provisions of the
agreement plus one additional sentencing discount. But if
the mistake was mutual, why should he benefit from it and
the government bear the entire cost of the mistake? When a
No. 04-1923 5
contract is rescinded, the parties are put back where they
were before there was a contract. “Rescission, simply stated,
is the unmaking of a contract. It is a renouncement of the
contract . . . and places the parties, as nearly as possible, in
the same situation as existed just prior to the execution of
the contract.” United States v. Gregory, 245 F.3d 160, 166 (2d
Cir. 2001), quoting Kavarco v. T.J.E., Inc., 478 A.2d 257, 261
(Conn. App. 1984). A plea agreement is the same. E.g.,
United States v. Williams, supra, 198 F.3d at 993-94; United
States v. Ramunno, 133 F.3d 476, 484 (7th Cir. 1998); United
States v. Ballis, 28 F.3d 1399, 1409-10 (5th Cir. 1994); see
generally United States v. Scruggs, 356 F.3d 539, 544-46 (4th
Cir. 2004). We see now that by his expansive notion of
“waiver,” the defendant is seeking to avoid the limitations
that contract law and criminal law alike place on efforts to
obtain one-sided benefits by challenging a plea agreement.
As part of its investigation of the defendant, the govern-
ment had made controlled purchases from him—that is, had
given informants marked money to buy drugs from him
and the informants had paid him this money, a total of
$7,675. Naturally the government wanted its money back
and the defendant agreed in the plea agreement to pay it
back. (The government found some of the marked money,
and so reduced its demand to $4,725.) The defendant now
claims that he shouldn’t have to pay because the govern-
ment seized $6,710 in a lawful search of his home. That is,
he’s claiming a setoff. In re Doctors Hospital of Hyde Park, Inc.,
337 F.3d 951, 955 (7th Cir. 2003); Selcke v. New England Ins.
Co., 995 F.2d 688, 690-91 (7th Cir. 1993); Nashville Lodging Co.
v. Resolution Trust Corp., 59 F.3d 236, 246 (D.C. Cir. 1995);
United Structures of America, Inc. v. G.R.G. Engineering, S.E., 9
F.3d 996, 997-98 (1st Cir. 1993).
There is no inconsistency between your owing a sum of
money and claiming not to have to pay it because the
6 No. 04-1923
intended recipient owes you more and should just deduct it
from what you owe him and remit the difference to you. In
other words, a claim to a setoff is not a repudiation of an
obligation and so need not be inconsistent with a plea
agreement; it could just be a means by which the defendant
proposed to honor an obligation created by the agreement.
But our defendant is not claiming a setoff; he is seeking to
rewrite the plea agreement, again without seeking rescis-
sion. In fact, he can’t claim a setoff. To do so would require
him to establish his right to the money that the government
seized from him when it searched its home. That in turn
would require him, in a case such as this in which there
has been no administrative or judicial forfeiture, to file a
motion under Fed. R. Crim. P. 41(g) for the return of the
money. E.g., In re Search of 2847 East Higgins Road, 390 F.3d
964, 965-66 (7th Cir. 2004); United States v. Morgan, 384 F.3d
439, 444 (7th Cir. 2004); Okoro v. Callaghan, 324 F.3d 488, 490-
91 (7th Cir. 2003); United States v. Felici, 208 F.3d 667 (8th
Cir. 2000). The defendant has not done that. He could not.
The money was found in his home together with a large
quantity of illegal drugs, a digital scale, and other evidence
of drug trafficking. Clearly the money was proceeds from
the sale of drugs, and as such expressly forfeitable, 21 U.S.C.
§ 881(a)(6), and hence not his lawful property. E.g., United
States v. Dusenbery, 223 F.3d 422, 425 (6th Cir. 2000) (per
curiam). So it couldn’t be the basis of a setoff.
The government concedes, however, that the duty to re-
pay the buy money should have been made a condition of
supervised release rather than being embodied in an order
of restitution. The buy money was an investigatory expense
rather than property taken from, or damage to the property
of, a victim of the defendant’s crime. United States v. Brooks,
114 F.3d 106, 108 (7th Cir. 1997); United States v. Daddato, 996
F.2d 903 (7th Cir. 1993); see also Gall v. United States, 21 F.3d
No. 04-1923 7
107, 111-12 (6th Cir. 1994); United States v. Salcedo-Lopez, 907
F.2d 97 (8th Cir. 1990); see generally United States v. Scott,
No. 04-1053, slip op. at 4-6 (7th Cir. Apr. 25, 2005). Either
way, the government is entitled to the return of the money.
But the defendant is better off owing the money as a
condition of supervised release; for example, it means he
doesn’t have to pay it until his period of supervised release
begins, and thus after he is released from prison, whereas a
judge may order restitution to be paid in full immediately
upon sentencing. 18 U.S.C. §§ 3664(f)(2), (3); United States v.
Sensmeier, 361 F.3d 982, 991 (7th Cir. 2004); United States v.
Jones, 289 F.3d 1260, 1265-66 (11th Cir. 2002) (per curiam);
United States v. Martin, 278 F.3d 988, 1006 (9th Cir. 2002).
The order of restitution is modified as indicated in the
preceding paragraph, and with respect to the prison sen-
tence a limited remand is ordered in accordance with the
Paladino decision.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-29-05